I am a fellow at the Hoover Institution, Stanford University's policy think tank. I write about politics, law and world affairs, piecing together where the policies underlying the headlines will lead us. I have enjoyed an interesting career as an attorney, professor, university president (Pepperdine University, 1985-2000) and now a research scholar. I recently co-authored a book called "New Deal and Modern American Conservatism." More of my work may be found at www.daviddavenport.com.

International Criminal Court: 12 Years, $1 Billion, 2 Convictions

News stories recently reported that the International Criminal Court convicted a Congolese warlord of being an accessory to war crimes and crimes against humanity. Rarely were readers told that this is only the second conviction obtained in the Court—both of Congolese warlords—after 12 years of the Court’s operation and over $1 billion in expenditures. Rarer still was the insight that even this conviction, on a 2-1 vote, was long in coming and disappointing in outcome since the criminal was acquitted of the most serious charges, and was only convicted at all because of a mid-course correction to charge him with being merely an accessory to the crimes.

The obvious question few seem to be asking is whether the I.C.C. is simply too expensive and inefficient to justify. Originally designed to make certain that war crimes, genocide and crimes against humanity were not ignored, the Court is supposed to achieve a sufficiently robust presence that it contributes “to the prevention of such crime.” To that end, it has 34 judges, over 700 staff, and an annual budget of $166 million. They say you can’t put a price on justice but $500 million per warlord conviction seems high by any standard. And what do 34 judges do all day? You don’t have to be a legal expert to figure that the preventive effect of convicting 2 warlords in 12 years doesn’t exactly leave international war criminals shaking in their boots.

English: The building of the International Criminal Court in The Hague, Netherlands Deutsch: Das Gebäude des Internationalen Strafgerichtshofes in Den Haag, Niederlande (Photo credit: Wikipedia)

The next scheduled prosecution was at least going after a bigger fish, Kenyan president Uhuru Kenyatta, but that trial was officially postponed last month after witnesses began to withdraw. There are reports that this prosecution may be close to collapse. The Prosecutor of the Court is unable to arrest her most visible target, President Omar al-Bashir of Sudan, who has been indicted but ignores the warrant for his arrest, as do other countries in the region. And speaking of the African region, all the Court’s cases in its 12-year history have come from that continent, prompting concern from leaders there, and a decision by the African Union not to cooperate with the ICC.

Small fish, few cases, fewer convictions, arrest warrants ignored, all while the Court burns through millions of dollars a year in The Hague. It seems evident that something is wrong with this picture, but what might be done? One obvious possibility would be to use the money instead to strengthen national courts. Under the doctrine of complementarity, the ICC acknowledges that it is essentially a back-up to national courts. Indeed, much of the reason for creating it was an acknowledgment that a number of countries simply do not have sufficiently strong or independent judiciaries, and that their court systems would easily be overwhelmed by mass atrocities. What if these hundreds of millions of dollars were invested directly into the national judiciaries of these countries, allowing the trials to take place closer to home where witnesses might be more readily available and the sense of justice and healing would be more directly felt?

Another alternative might be temporary international tribunals such as those created to deal with the massive genocide in Rwanda, or in the former Yugoslavia and elsewhere. These tribunals have not been inexpensive either, but at least they have brought hundreds of cases and a large number of convictions. By comparison, the trial docket in The Hague is embarrassingly small. Since all the ICC cases so far have been brought in Africa, perhaps it would make sense to develop an African regional court.

English: One Billion Dollar Artwork (Photo credit: Wikipedia)

When the International Criminal Court was being formed, I was among those who criticized it as one more international institution that would try to do too much, inserting itself into complex political, diplomatic and military matters that should not be reduced to criminal prosecutions. I was thinking of a U.S.-style independent prosecutor ranging around the world looking for trouble. Although there has been some of that, it turns out by now that the bigger problem is that the Court is accomplishing too little. The ICC is one more utopian tool of global governance that has disappointed. Its funding and staff would be better utilized to strengthen national and regional criminal justice.

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